1. ENTIRE AGREEMENT
1.1. The terms and conditions set forth herein (“Standard Terms”), together with any terms and conditions set forth in each applicable statement of work and attached exhibits provided by Wayuu and executed by Customer and Wayuu (such statement of work and exhibits, the “SOW”, and collectively herewith, the “Agreement”), are the only terms and conditions that apply to the services performed by Wayuu under such SOW (“Services”). The Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between the Standard Terms and the SOW, the SOW shall govern. The Agreement shall prevail over any Customer terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
2. EFFECTIVE DATE
2.1. The Agreement is made effective between the parties upon execution by the last of Wayuu or Customer to sign the SOW (the “Effective Date”). Customer represents, warrants and covenants, that its signatory to the SOW is duly authorized by Customer to make this Agreement on behalf of Customer.
3. TERM AND RENEWAL
3.1. This Customer Agreement shall remain in effect for the Term as defined in the SOW, unless terminated as permitted under Section 11 herein. The Agreement shall automatically renew for one (1) year terms absent termination by written notice provided not less than sixty (60) days’ prior to the end of the Term.
4. WAYUU’S RESPONSIBILITIES; MANUFACTURER’S WARRANTIES
4.1. Wayuu shall use commercially reasonable efforts to perform the Services using qualified personnel. Wayuu shall use reasonable efforts to meet any performance dates specified in the SOW, and any such dates shall be estimates only.
4.2. Any hardware component included in Customer’s Network (as defined in Section 4.3 that is or was at the time of installation the subject of a warranty by the manufacturer of that hardware shall remain subject to the manufacturer’s warranty. In the event of any failure thereof, Wayuu will assist Customer in returning the hardware to the manufacturer.
4.3. Wayuu is only obligated under this Agreement with respect to computer hardware provided and installed by Wayuu for Customer.
4.4. Any change to the express Services in an SOW shall require a change order, and may require additional charges.
4.5. Wayuu shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the defective Services, reasonably described, to Wayuu within [NUMBER] days of the time when Customer discovers or ought to have discovered that the Services were defective. Subject to the foregoing, Wayuu shall, in its sole discretion, either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate. THE REMEDIES SET FORTH IN THIS SECTION 4.5 SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND WAYUU’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 4.1. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 4.1 ABOVE, WAYUU MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
5. CUSTOMER’S RESPONSIBILITIES
5.1. Customer shall at all times comply with all applicable laws and regulations of the United States of America and all other applicable laws and regulations, including laws and regulations governing, restricting or otherwise pertaining to the use, distribution, exporting or import of data, products, services and/or technical data. Transmission of any material in violation of any law or regulation is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret.
5.2. Customer shall: (a) cooperate with Wayuu in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Wayuu, for the purposes of performing the Services; (b) respond promptly to any Wayuu request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Wayuu to perform Services in accordance with the requirements of this Agreement; (c) provide such Customer materials or information as Wayuu may reasonably request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and (d) obtain and maintain all necessary licenses and consents.
5.3. Customer shall not utilize or enable any third party to use Customer’s Network, including and any computer (including servers), computer peripheral or software thereon, including any server which may be hosted by Wayuu (“Customer’s Network”) for the delivery of unsolicited e-mail (spamming), the spreading of malware of any kind, including viruses and other harmful software code.
5.4. Customer is expressly prohibited from using Customer’s Network or any computer thereon to violate the security of any computer or network, crack passwords or security encryption codes, or transmit or store any illegal material(s).
5.5. Customer shall be responsible for all activity occurring on Customer’s Network, including the actions of all persons who were provided with or otherwise obtained a username and password from Customer, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify Wayuu immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) not impersonate another Wayuu user or provide false identity information to gain access to or use the Services; (iii) suspend all user accounts for individuals who are no longer authorized to access those accounts, and (iv) comply with any instructions concerning access to and/or use of the Services that Wayuu may give from time to time.
5.6. All services provided by Wayuu under this Agreement extend to the Customer only, and do not extend to any other person, corporation or entity, regardless of their relationship with Customer and under no circumstances will Wayuu be obliged to support third parties.
5.7. Customer and all other third parties accessing or using Customer’s Network or Services shall abide by all of the rules, regulations and policies of Wayuu, as they may be updated from time to time at https://www.wayuutech.com/ as well as rules, regulations and policies applicable to other networks and computer systems accessed via Customer’s Network, whether operated by Wayuu, its suppliers or others. If Customer is unsure of applicable policies, it is Customer’s responsibility to ascertain said policies. Customer agrees to indemnify and hold Wayuu harmless from any claims resulting from the Customer’s use of the Service that damages Wayuu, Customer or another party or parties.
5.8. Customer agrees to indemnify and hold Wayuu harmless from any claims resulting from Customer’s use of the Service that damages either the Customer or another party or parties.
6. MAINTENANCE AND DATA
6.1. Following installation, unless Customer purchases equipment maintenance Services (“Maintenance Services”). Customer is solely responsible for the ongoing operation of Customer’s Network. Any assistance by Wayuu will result in fees payable on a time and materials basis at then current pricing.
6.1. Under no circumstances shall Wayuu assume responsibility for the loss of information on the Customer’s Network. Customer is responsible for secure backup of all data on Customer’s Network, and is responsible for rebuilding their environment in the event of loss of this information caused by any failure.
6.3. Customer shall fully insure additional software and hardware installed on Customer’s server against all risk of loss, including without limitation, theft, fire, water and earthquake damage. Customer is advised to purchase business interruption insurance to protect against lost revenue from Customer’s server in case of prolonged disruption of services or catastrophe.
7. PAYMENT AND CHARGES
7.1. The Customer is responsible for any and all charges under executed SOWs. Fees for additional Services will be charged as the Service is performed.
7.2. Invoices for Services are invoiced and payable in advance for the term of the Services. Customer shall pay all invoiced amounts within thirty (30) days. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder. Services are subject to suspension for any account thirty (30) or more days past due and become subject to a re-activation fee. Wayuu may impose a late charge on invoiced amounts over 30 days outstanding equal to 1.5% per month of the unpaid until the entire balance is paid in full.
7.3. Wayuu’s charges increase annually five percent (5%) on each twelve (12) month anniversary of the Effective Date.
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8. LIMITATION OF LIABILITY
8.1. CUSTOMER ACKNOWLEDGES AND AGREES THAT Wayuu exercises no control whatsoever over the content of the information passing through AND CUSTOMER’S network. CUSTOMER IS SOLELY RESPONSIBLE FOR SUCH CONTENT. Wayuu makes no warranties of any kind, whether expressed or implied, for the service(s) it is providing. Wayuu also disclaims any warranty of merchantability or fitness for a particular purpose. Wayuu will not be responsible for any damage you suffer. This includes the loss of data resulting from delays, non-deliveries, miss-deliveries, or service interruptions caused by its own negligence, omission or your errors or omissions, POWER OUTAGES, SOFTWARE VIRUSES AND ANY OTHER DEFECT IN SERVICE QUALITY OR CONTINUITY. Use of any information obtained via CUSTOmER network and its providers is at your own risk. Wayuu specifically denies any responsibility for the accuracy or quality of information obtained through its services. WHILE WAYUU TAKES MEASURES TO REDUCE THE RISK OF SECURITY BREACHES, WAYUU CANNOT AND DOES NOT GUARANTEE THE ABSENCE OF UNLAWFUL INTERCEPTIONS OR UNAUTHORIZED ACCESS TO CUSTOMER’S data.
8.2. Wayuu's liability hereunder for any losses or damages suffered by Customer or its customers with respect to the products and services or any other item under this Customer Agreement, whether direct or indirect, from any cause whatsoever, shall be limited to the amount paid by Customer to Wayuu for products and services ordered hereunder for a single billing period only. Wayuu shall not be liable for any incidental or consequential damages, including without limitation , lost profits or for any claim or demand against the Customer by any other party based on any express, implied or claimed warranties not specifically set forth in this Agreement.
8.3. IN NO EVENT SHALL WAYUU BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF WAYUU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.4. No action, regardless of form, arising out of this or any other Wayuu Agreement or the transactions contemplated herein or therein, may be brought by Customer more than one (1) year after the cause of action has occurred.
8.5. Customer shall indemnify, defend and hold harmless Wayuu, its directors, employees and agents from any action brought against them by any third-party in connection with this Agreement, or any other Agreement between Customer and a third-party from any claims resulting from the use of the service by you or any of your customers or others throughout your chain of distribution, including end-users, and including, without limitation, (i) claims of third parties based on or related to Customer’s breach of any undertakings or representations herein or any of Customer’s actions or omissions with respect to the performance of this Agreement, (ii) claims by any of Customer’s agents in connection with the Services, and (iii) claims alleging that use of the Customer data infringes or misappropriates the rights of, or has caused harm to, any third party. Customer shall pay all damages and reasonable attorney fees arising as a result of Customer's use or misuse of any rights granted herein.
9. INTELLECTUAL PROPERTY
9.1. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Wayuu in the course of performing the Services (collectively, the “Deliverables”) shall be owned by Wayuu. Wayuu hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
10. CONFIDENTIALITY
10.1. All non-public, confidential or proprietary information of Wayuu, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Wayuu to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the Wayuu. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Customer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party. Customer agrees to use the Confidential Information only to make use of the Services and Deliverables. Wayuu shall be entitled to injunctive relief for any violation of this Section.
11. TERMINATION
11.1. Either party shall have the right to terminate this Agreement for material breach following thirty (30) days’ prior written notice to the other party and an opportunity to cure where possible or if the other party becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
11.2. Wayuu shall have the right to suspend or terminate this Agreement for any reason, by providing the Customer with written notice.
11.3. The Customer may terminate this Agreement cancel with written notice sent to the address of Wayuu in this Agreement. If either the Customer or Wayuu cancels this account, for any reason, Wayuu will use commercially reasonable efforts to return Customer’s Server and equipment list set forth at Exhibit A to Customer at Customer’s expense.
12. MISCELLANEOUS PROVISIONS
12.1. This Customer Agreement is being executed by Customer at theaddress provided for herein, and by Wayuu in the Commonwealth of Virginia, and is governed by, and shall be construed in accordance with the laws of the Commonwealth of Virginia. Venue for any litigation or claim hereto shall be the Virginia state courts in Fairfax County, Virginia. Each party expressly waives any right to a trial by jury.
12.2. If any sentence, paragraph, clause or combination of the same in this Customer Agreement is held by a court or other governmental body of competent jurisdiction to be unenforceable, invalid or illegal in any jurisdiction, such sentence, paragraph, clause or combination shall be deemed deleted from this Customer Agreement and the remainder of this Customer Agreement shall remain binding on the parties as if such unenforceable, invalid or illegal sentence, paragraph, clause or combination had not been contained herein.
12.3. In the event litigation is required to force compliance with, or address any breach of this Agreement, the parties agree that the prevailing party shall be entitled to attorneys' fees and costs actually incurred.
12.4. Nothing in this Customer Agreement or to be done pursuant to its terms and conditions is intended to, or shall, create a partnership or joint venture, for tax purposes or otherwise, between Wayuu and Customer. Customer is and shall remain fully and solely responsible for all of its employees and assumes full responsibility for all costs and liabilities incurred in connection with the termination of such employees for any reason whatsoever.
12.5. If Wayuu’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Wayuu shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
12.6. Wayuu assumes no responsibility or liability for delay, inability to perform, or interruption, or Services due to strikes, riots, floods, storms, earthquakes, fire, power failure, insurrection, interruption or unavailability of electrical service or internet connectivity, act of God, or other cause beyond the control of Wayuu, and will not be required to perform Services to Customer while such force majeure events may continue. In addition, Wayuu assumes no responsibility or liability for any delay of Services due to failure of Customer or its agents to provide access to the premises or relevant computers and computer networks.
12.7. Wayuu may include Customer in its list of Customers on the Wayuu website and elsewhere. Feedback received from Customer regarding Wayuu services is the property of Wayuu.
12.8. Wayuu may assign this Agreement in whole or in part and shall have the further right to sub-contract Services that it is obligated to perform under or in connection with this Agreement; provided that Wayuu shall be responsible for performance by any sub-contractor.
12.9. This Agreement shall not be modified or altered except by a written instrument duly executed by Customer and by an authorized officer of Wayuu. No waiver by Wayuu of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Wayuu. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of this Agreement, which by their nature should apply beyond expiration or termination of this Agreement, will remain in force after any termination or expiration of this Agreement.